Illinois treasurer proposes reforms in litigation fund

By Kevin McDermott and Nicholas J.C. Pistor

Post-Dispatch, St. Louis, MO

Published Tuesday, September 30, 2008

SPRINGFIELD, Ill. — Citing a Post-Dispatch report of endemic waste and lax oversight in the state's death penalty trial fund, the Illinois state treasurer on Monday proposed reforms to abolish what he called a "blank check" for lawyers and others involved in such trials.

Legislators in both parties agreed they may have to revisit the question of whether the state's Capital Litigation Trust Fund is too easily abused by trial professionals who tap it.

"Are these people gouging the state of Illinois? That's what we need to look into," said state Senate Minority Leader Frank Watson, R-Greenville.

State Treasurer Alexi Giannoulias' proposal, outlined in a statement to the newspaper, would create a panel to review vouchers submitted to the fund, which pays expenses of defense and prosecution teams in death penalty trials. The proposal would set specific limits on amounts lawyers and others can charge for specific items such as meals and travel.

Among the changes Giannoulias suggests is a maximum of 50-cents per mile for travel reimbursement from the fund, and a top limit of $140 a night for hotel rooms.

The Post-Dispatch reported Sunday that some people working on death penalty trials have charged the fund as much as $300 an hour for merely driving to the jurisdiction of a trial. The newspaper also found hotel rooms for as much as $300 a night being billed to the fund.

"Litigators and investigators should not get a blank check from taxpayers when it comes to trying these cases," Giannoulias said in the statement. "We need to ... limit excessive and inappropriate costs so that the state and taxpayers aren't robbed in the pursuit of justice."

The fund was established eight years ago after several death row inmates were found to be not guilty. It provides money to both sides in death penalty trials to pay for lawyers' fees, investigators and other expenses approved by the presiding judge.

The Post-Dispatch's analysis of thousands of payment vouchers found costs that critics say are unnecessarily high and inadequately monitored: top-dollar fees for defense teams; out-of-state expert witnesses who charge hundreds of dollars an hour for weeks or months at a time; huge payouts for vaguely worded, unverifiable investigative services.

The state treasurer's office administers the fund and keeps its records, but it has no authority to withhold payment of bills submitted to it. That authority rests primarily with the trial judges in each case.

The newspaper found that judges often are hesitant to decline any expense request for fear of tainting their trials. Among Giannoulias' proposed reforms is the creation of a five-member panel of lawyers and judges to review those expenses.

The fund began in 2000, and in 2005 the Legislature added restrictions in response to reports of lax oversight and allegations of overspending. But the reforms left most expenses uncapped. The newspaper found that many of the same issues persist.

"I'd find it hard to believe that any legislator, confronted with this report, isn't going to recognize that something needs to be done," said state Rep. John Fritchey, D-Chicago, who was instrumental in the earlier reforms.

Metro East Circuit Judge Milton S. Wharton — who presided over a recent trial in Belleville that tapped the fund for roughly $1 million, including numerous questionable expenses cited by the newspaper — has called for an investigation by the Illinois attorney general's office into the fund's use.

Wharton said Monday in a statement that the newspaper's findings were "thoroughly painful" and should result in "necessary changes which will both protect the public interest and guarantee that no one is wrongfully convicted for the lack financial resources."

Giannoulias: Cap costs to death penalty fund
Post-Dispatch, St. Louis, MO
Published Monday, September 29, 2008

Following is the a statement from Illinois treasurer Alexi Giannoulias:

Illinois State Treasurer Alexi Giannoulias is drafting legislation to cap the amount of money attorneys and investigators receive for food, travel and hotels when working on capital litigation cases and to monitor individuals suspected of abusing the fund.

Giannoulias is also pushing for the creation of an independent panel to review and sign off on expenses deemed excessive or improper.

“Litigators and investigators should not get a blank check from taxpayers when it comes to trying these cases,” said Giannoulias, who intends to convene a group of lawmakers and professionals to discuss legislation as well as guidelines and parameters. “We need to standardize the charges and limit excessive and inappropriate costs so that the state and taxpayers aren’t robbed in the pursuit of justice.

“The state must balance two primary concerns,” Giannoulias added. “It must curb these abuses and ensure that money in the fund does not run dry, but it must also ensure that any action taken does not discourage the best and brightest legal minds from working on these cases.”

The proposals, which will be introduced to the General Assembly in January, are designed to hold personnel who litigate death penalty cases and bill the state’s Capital Litigation Trust Fund to the same reimbursement standards as state employees. Doing so would put an end to high-end dinners, first-class flights and other luxury charges that litigators and investigators charge the fund for reimbursement.

Under Giannoulias’ plan, meals would be capped at $28 per day and mileage at 50 cents per mile. Hotel rooms would be capped at $60 to $140 depending on location, and only standard coach airline flights would be eligible for reimbursement. These rates would apply unless an exception is requested and permitted. The rates would be reset each January when the hourly reimbursement for court-appointed defense attorney is reset according to the Consumer Price Index.

While the proposed legislation would not take effect until fiscal year 2009, Giannoulias will ask Illinois judges to voluntarily institute the caps come November to give his staff time to effectively communicate the proposed changes to judges statewide.

In addition, Giannoulias wants the authority to appoint a five-member panel of lawyers and judges which will review and sign off on expenses deemed extraordinary by a judge or when the court costs exceed a specific amount. The panel’s findings will set funding precedents and be incorporated into judge training statewide.

“This panel will provide a secondary review – essentially a backstop – in case excessive expenditures slip through the cracks,” Giannoulias said.

The Capital Litigation Trust Fund has cost the state more than $40 million since former Gov. George Ryan instituted a death penalty moratorium in 2003. The Treasurer’s Office administers the fund but has no authority to deny payments once approved by the courts.

Giannoulias’ proposals come in the wake of a recent St. Louis Post-Dispatch investigation that highlighted abuse within the fund. Reporters found that investigators, defense professionals and prosecutors have taken advantage of the fund that has few limitations on how much can be billed and what is covered under reimbursement.

The Capital Litigation Trust Fund was created in 1999 by the Illinois General Assembly to provide defense counsel and prosecutors access to sufficient resources to cover the costs of litigating death penalty cases.
The bipartisan legislation, which went into effect Jan. 1, 2000, was prompted by the overturned convictions of 13 individuals whom the courts determined had been wrongly accused or convicted of capital crimes and sentenced to death row.

As a result, the state sought to ensure that a lack of financial resources would not deny a death penalty defendant access to competent counsel and the ability to mount a credible defense. The fund also provides money for prosecutors, helping to defray the high costs of death penalty cases.

After a single case depleted the non-Cook County appointed defense counsel appropriation in fiscal year 2002, the Legislature amended the Capital Crimes Litigation Act to demand greater fiscal accountability from attorneys litigating death penalty cases. Court-appointed defense attorneys are now required to submit a budget and an itemized accounting of work performed in a death penalty case.

However, a Capital Punishment Reform Study Committee report published in May 2008 states that abuses still exist. Among its findings: The Capital Litigation Trust Fund acts as an incentive for prosecutors to pursue the death penalty – simply to shift the cost of the trial from county to state coffers.

“Working with judges, we can act immediately to standardize many of these costs, but more reforms will be necessary to eliminate the arbitrary and subjective approval of other types of expenses,” Giannoulias said.